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Depaolo v. GHM Portland Mar LLC

United States District Court, D. Maine

August 31, 2017



          John H. Rich III, United States Magistrate Judge

         Defendant GHM Portland Mar, LLC, d/b/a Portland Marriott at Sable Oaks (“GHM”) sought to strike plaintiff Cary DePaolo's expert designation of Carlyle B. Voss, M.D., pursuant to Federal Rule of Civil Procedure 37(c)(1) on the bases that the initial designation was deficient pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) and that a supplemental expert report by Dr. Voss was untimely and prejudicial. Treating its request as an oral motion to strike the Voss designation, I denied it during an earlier telephonic hearing. I elaborate herein to distinguish that decision from a decision issued today in Downing v. Select Rehab., Inc., No. 2:16-cv-00552-GZS (D. Me.), in which I have granted the plaintiff's motion to exclude the defendant's expert's testimony in part on the basis of its insufficiency pursuant to Rule 26(a)(2)(B).

         I. Manner in Which To Raise Disputes Over Sufficiency of Expert Designations

         In both this case and Downing, disputes over the sufficiency of expert designations were raised by way of motions filed in the absence of any attempt by the movants to meet and confer with opposing counsel in a good-faith effort to resolve those issues privately. This was improper. In each case, as discussed below and in Downing, that impropriety proves not to be dispositive against the movants. However, on different facts, it could be. See White v. Meador, 215 F.Supp.2d 215, 221 (D. Me. 2002) (denying defendants' motion to strike expert designation in part on basis that they raised no issue with plaintiff or court regarding its insufficiency until months had passed and the case had been scheduled for trial; observing, “Counsel must at least give opposing counsel a timely opportunity to remedy omissions in the required designations before seeking assistance from the court in obtaining the necessary information, which should also be done well before the close of discovery.”).

         The Bar is reminded that a dispute over the sufficiency of an expert designation is a discovery dispute to be handled in the manner prescribed by Local Rule 26(b). That rule prohibits the filing of written discovery motions without the prior approval of a judicial officer and directs that “[a] party with a discovery dispute . . . first confer with the opposing party in a good faith effort to resolve by agreement the issues in dispute[, ]” failing which “the moving party shall then seek a prompt hearing with a judicial officer by telephone or in person.” Loc. R. 26(b).

         II. Motion To Strike Designation

         A. Applicable Legal Standard

         Federal Rule of Civil Procedure 26 provides, in relevant part, that “a party must disclose to the other parties the identity of any [expert] witness it may use at trial to present evidence[.]” Fed.R.Civ.P. 26(a)(2)(A). “A party must make these disclosures at the times and in the sequence that the court orders.” Id. at (a)(2)(D). Both Rule 26(a)(2)(B) and the court's scheduling order provide that, if an expert witness is retained or specially employed to provide testimony in the case, or is a party's employee whose duties regularly involve giving expert testimony, the disclosure must contain six categories of information, although, pursuant to the court's scheduling order, that information need not be provided in the form of a written report prepared and signed by the expert. See id. at (a)(2)(B); Scheduling Order (ECF No. 23) at [2].

         The six categories of information required to be disclosed include: “(i) a complete statement of all opinions the witness will express and the basis and reasons for them;” and “(ii) the facts or data considered by the witness in forming them[.]” Fed.R.Civ.P. (a)(2)(B)(i)-(ii).

         Rule 26 also states:

For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.

Fed. R. Civ. P. 26(e)(2).

         “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The movant bears the burden of demonstrating that a late and/or insufficient expert designation is either substantially justified or harmless. See, e.g., United States Bank Nat'l Ass'n v. James, Civil No. 09-84-P-JHR, 2010 WL 1416126, at *6 (D. Me. Apr. 5, 2010).

         “The baseline rule is that the required sanction in the ordinary case is mandatory preclusion.” Harriman v. Hancock Cty., 627 F.3d 22, 29 (1st Cir. 2010) (citations and internal punctuation omitted). However, the court retains discretion to impose other sanctions in lieu of, or in addition to, mandatory preclusion. See Fed. R. Civ. P. 37(c)(1); see also, e.g., Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77-78 (1st Cir. 2009) (“Preclusion . . . is not a strictly mechanical exercise. And, in its discretion, the district court may choose a less severe sanction. Where a district court does opt in favor of preclusion, we review that decision with reference to a host of factors, including: (1) the history of the litigation; (2) the sanctioned party's need for the precluded evidence; (3) the sanctioned party's justification (or lack of one) for its late disclosure; (4) the opponent-party's ability to overcome the late disclosure's adverse effects - e.g., the surprise and prejudice associated with the late disclosure; and (5) the late disclosure's impact on the district court's docket.”) (citations and some internal quotation marks omitted).

         B. Factual Background

         DePaolo, a former longtime employee of the Marriott Hotel in South Portland, filed suit on September 15, 2016, alleging that after he was diagnosed with lymphoma in late 2013 and began chemotherapy treatment in January 2014, the hotel's General Manager, Edward Palmer, became increasingly hostile toward him, refused to make reasonable accommodations for his disability, and began to verbally abuse and berate him, triggering symptoms of post-traumatic stress disorder (“PTSD”) with which DePaolo had been diagnosed in 1972 in connection with his military service. Complaint ¶¶ 1, 7-15.

         DePaolo alleges that he complained on several occasions to the Human Resources Manager, but that no action was taken. See id. ¶ 16. He adds that, as a result of the ongoing verbal abuse and refusals to accommodate, his PTSD worsened to the point that he took an approved extended medical leave of absence in January 2015 pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. See id. ¶¶ 18-20. He alleges that, despite knowing that he was out on approved FMLA leave, Palmer informed him that if he wished to return, he could no longer be Chief Engineer and would receive a reduction in pay. See id. ¶ 21. On April 13, 2015, on his doctor's advice that returning to work after the expiration of his leave would be dangerous to his health, DePaolo gave notice that he could not and would not return to work. See id. ¶¶ 23-25.

         DePaolo sues GHM for disability discrimination, retaliation, and the creation of a hostile work environment in violation of the Maine Human Rights Act, 5 M.R.S.A. § 4551 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Maine Whistleblowers' Protection Act, 26 M.R.S.A. § 831 et seq. (Count I), and for interference with his rights pursuant to the FMLA ...

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